Citation Nr: 1220066
Decision Date: 06/07/12 Archive Date: 06/20/12
DOCKET NO. 11-19 840 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUE
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.
ATTORNEY FOR THE BOARD
S. Mishalanie, Counsel
INTRODUCTION
This matter comes to the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an August 2010 determination of the VA Regional Office (RO) in Manila, the Republic of the Philippines that denied the claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.
In an April 2012 letter, the appellant withdrew his request for a Board hearing.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
The service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.
CONCLUSION OF LAW
The appellant does not have the requisite service to entitle him to a payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2011); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
As set forth in more detail below, the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II. VA is bound by this certification. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) ("The U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In light of the binding certification, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law. See Valiao v. Principi, 17 Vet. App. 229 (2003).
The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by VA. 38 U.S.C.A. § 107 (West 2002).
On February 17, 2009, the President signed the American Recovery and Reinvestment Act, intended for "job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization." See Pub. L. No. 111-5, 123 Stat. 115 (2009). The legislation included a provision for the creation of the Filipino Veterans Equity Compensation Fund, providing one-time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).
An "eligible person" is defined as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ). Additionally, the person must have been discharged or released from such service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).
The Act further directs the Secretary to "administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section." Id.
The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA." 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.
That regulation provides that for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department, (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2011).
With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability. 38 C.F.R. § 3.203(b) (2011). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2011).
In February 2009, the appellant submitted an application for a one-time payment from the Filipino Veterans Equity Compensation Fund. He reported that he served in the 13th Company (PA)/Ramsey Guerrilla Mountain Corps from April 1945 to June 1946.
In May 2009, the RO contacted the service department and requested verification of the appellant's reported service. In its request, the RO included the information he provided. In a response received in September 2009, the National Personnel Records Center (NPRC) responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.
In connection with the claim, the appellant submitted documentation, including affidavits and copies of Philippine Army documents. A certification from the Armed Forces of the Philippines Office of the Adjudicate General notes the appellant had guerrilla service with the 13th Company (PA) from April 1945 to October 1946. A "1st Indorsement" from the General Headquarters of the Armed Forces of the Philippines notes that the appellant joined the Mountain Corps guerrilla unit in June 1942, enlisted with the 13th Military Police Command in April 1945, and was honorably discharged in October 1946. A certification from the Philippine Army notes that the appellant served with the 13th Military Police Command from April 1945 to October 1946. A training certificate from Military Police Command that indicates that he completed a basic course in military police training in June 1945. The appellant also submitted a copy of his passbook from the Philippine Veterans Bank.
In April 2010, the RO contacted the service department and requested verification of the appellant's reported service with the Mountain Corps guerrilla unit and the 13th Company (PA). Later that month, the NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.
In letters dated in June 2010, August 2011, and November 2011, the appellant reported that he was a graduate of the Military Police Training School Military Police United States Armed Forces of the Far East (USAFFE). He said he was a private with the 13th Military Police Command Philippine Army and provided his assigned serial number. He said he fought the Japanese in Neava Ecija and in the Cordillero mountains in 1945 and 1946.
In December 2011, the RO contacted the service department and requested verification of the appellant's reported service. In January 2012, the NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.
The Board has carefully considered the documents submitted by the appellant but finds that they fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The documents he submitted were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought. As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund.
The only recourse was to request verification of service by the service department. In this regard, the NPRC has certified three times that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board is bound by this certification. See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA").
As the service department has certified that the appellant did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied.
ORDER
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.
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JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs